The import of some new cell phones into the US will be prohibited starting …

New cell phones with Qualcomm chips inside could become a scarce commodity soon. President Bush decided not to veto a US International Trade Commission ruling barring the importation of new 3G cell phones that contain Qualcomm chips found to have infringed on a Broadcom patent.

The case dates back to June 2005, when Broadcom filed a lawsuit accusing Qualcomm of patent infringement. At the same time, Broadcom hauled its competitor before the ITC. In October 2006, the ITC voted 4-2 to adopt an administrative law judge's finding that Qualcomm's EVDO chips, circuit board modules, and handsets containing the chips infringed on Broadcom's patents. That finding led to the ban.

Qualcomm asked the ITC to reconsider the ban, a request that the ITC quickly denied. That left Qualcomm with two ways of staving off the ban: getting President Bush to veto the ITC ban, or convincing a federal appeals court to overturn the ban. President Bush's decision leaves the judicial route as the only option left to Qualcomm.

Barring quick judicial intervention, the ban on importation will go into effect tomorrow, according to US Trade Representative Susan C. Schwab. "In this case, after carefully weighing these considerations, advice from agencies, and information received from interested parties, I have decided to permit the limited exclusion order and cease and desist order that the USITC issued in its investigation," said Schwab in a statement.

US cellular carriers had argued vehemently against the ban, which they believe would hurt their business. Wireless trade group CTIA sounded the alarm bells, saying that the ITC's decision would "unnecessarily decrease competition" while causing "enormous undue harm to tens of millions of American wireless consumers."

Somehow, I think that American consumers will manage to survive without the latest and greatest cellular handsets, but the decision to keep the ban in place could cause some hardship for carriers that rely on shiny, new devices to entice customers into signing on for another two years. There is one solution available for those carriers, however, one that Verizon chose when it signed a patent licensing agreement with Broadcom, ensuring that its phones will not be covered by the ban. Sprint may choose to follow suit in order to keep its latest 3G phones coming to market.

In a statement released this afternoon, Broadcom described itself as "gratified" by the decision not to veto the ban. As one might expect, Qualcomm was not happy. "While we are disappointed with today's decision, we thank the Administration for taking the time to review this matter," said Qualcomm CEO Paul E. Jacobs. "We will pursue all legal and technical options available to us to minimize the impact of the ITC order on consumers, our customers and the entire wireless industry."

Qualcomm plans to appeal the ITC's ban to the Federal Circuit Court of Appeals and ask for an emergency stay of the ITC's decision. With permanent injunctions in patent cases being hard to come by, companies have increasingly turned to the ITC in order to keep infringing products off the market. It's a strategy that has worked well for Broadcom, and one that may result in Qualcomm being forced back to the bargaining table.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman